Privy Council tosses out Bermuda government attempt to gag media

A Government attempt to gag the media in Britain's oldest colony from reporting on allegations of corruption at the Cabinet level has been tossed out by the Privy Council in London.

Bermuda's Attorney General and Police Commissioner launched the gag attempt after media reported details from a leaked thousand-page police dossier documenting a 2-year investigation into allegations of kickbacks and corruption at the Bermuda Housing Corporation, a publicly-funded body established to provide affordable housing for Bermudians.

The allegations involved accusations against former Premier Dame Jennifer Smith and current Premier Dr Ewart Brown, among other members of the Cabinet. After the police submitted the file to prosecutors in 2003, it was decided that no charges could be levelled against those named by investigators.

However, the Acting Director of Public Prosecutions admitted at the time, the politicians' behaviour could be characterised as "unethical" - and, he admitted, had Bermuda's century-old anti-corruption laws been updated, it was possible that charges could have been made.

The scandal appeared to blow over on the island - until files documenting the police investigation were "stolen" and leaked to the media, which printed sensational extracts in June.

Police raided newspaper and television station offices, and arrested the Auditor General when he refused to voluntarily surrender copies of the stolen documents. The Government promptly launched the gag order preventing the media from further reporting from the dossier.

However the Supreme Court ruled against a gag order - as did the Bermudian Court of Appeal. Yesterday the action reached the Privy Council in London, the highest court of appeal in the UK and British Overseas Territories.

At the Privy Council arguments centred around several questions: does the public's trust in the confidentiality of police investigations outweigh the public's right to know about allegations – and evidence supporting those allegations – against their elected officials, particularly with an election looming?

And how can those two public interests be weighed when they pivot

around a leaked secret police dossier that has not been seen by most of those

involved?

The five Law Lords did not waste time over their decision.

They did not present their reasons yesterday for ruling against the gag order, however some of their comments throughout the day were revealing.

"The allegations might be right, they might be wrong, but we are talking at best about the unethical behaviour of politicians," said Lord Hoffman.

"He (the DPP) is quoted as saying that it was unethical, not

criminal. If that's the case surely the

public has a right to know if their politicians behaved unethically."

Lord Neuberger added that if the rest of the dossier contained nothing new, there was no harm in publishing it. However, if the rest of the dossier was different to what has already been published, he added, "it might be absolute dynamite and the public ought to know".

QC Saul Froomkin, acting for the press, said there are only three alternatives regarding what is in the remainder of the dossier. "Either the balance is innocuous, or it's more if the same, in which case it doesn't matter if they publish it. Or it's worse. One doesn't have to be a genius to figure that out.

Later, he added: "Does the public have a right to know that a police

investigation over two years found evidence saying the Premier was

guilty of corruption – or simply unethical or even questionable

conduct?"

The answer, he insisted, was yes – "especially if an election is imminent". The next general election in Bermuda must be called by 2009, but the island's political parties have been on election footing for months. Affordable housing is one of the main political issues on the island, where many Bermudians - despite the island's wealth - struggle to pay sky-high rents and mortgages.

The lords made their decision within the hour. "The appeal ought to be

dismissed," Lord Hoffman said briskly, awarding costs to the media.

It is unclear when the lords will publish their reasons.

In a statement from his spokesman on June 25, Premier Brown said if the Privy

Council ruled — as it did yesterday — against restraining the media then

"Bermuda's long-standing supremacist oligarchy would be vested with legal

licence to intensify the ongoing (opposition)/media tyranny".

Dr. Brown has also launched his own personal legal action against the island's only daily newspaper, The Royal Gazette, and others to stop the publication of further information about him from the BHC file. That action is set to be heard at Supreme Court.

Reacting to news of the Privy Council ruling yesterday, he said: "The

appropriate thing for the Government to do is simply accept the decision of